In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4309

United States of America,

Plaintiff-Appellee,

v.

Thomas C. Richardson,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No 99 CR 339--Suzanne B. Conlon, Judge.

Argued October 23, 2000--Decided January 25, 2001

 Before Posner, Diane P. Wood, and Williams, Circuit

Judges.

 Posner, Circuit Judge. The defendant pleaded

guilty to receiving and possessing child

pornography (including visual depictions) in

violation of 18 U.S.C. sec.sec. 2252(a)(2) and

(a)(4)(B) and was sentenced to 108 months in

prison. He had downloaded more than 70,000

pornographic images from Internet-accessed

newsgroups with such names as

"alt.binaries.pictures.erotica.lolita." The FBI

examined a random sample of 1,300 of these images

and discovered that 77 depicted bondage and

torture of children. The sentencing judge raised

Richardson’s base offense level by four levels

under U.S.S.G. sec. 2G2.2(b)(3) because the

bondage and torture pictures "portray[ed]

sadistic or masochistic conduct or other

depictions of violence" and by two levels under

U.S.S.G. sec. 2G2.2(b)(5) because "a computer was

used for the transmission" of the illegal

material. The appeal challenges the two

punishment enhancements.

 An initial puzzle unilluminated by the briefs is

the confusing overlap between the guideline under

which Richardson was sentenced, 2G2.2, and a

closely related guideline, 2G2.4. The first of

these is captioned "Trafficking in Material

Involving the Sexual Exploitation of a Minor;

Receiving, Transporting, Shipping, or Advertising

Material Involving [such exploitation];

Possessing Material Involving [such exploitation]

with Intent to Traffic." The second guideline is
captioned "Possession of Materials Depicting a

Minor Engaged in Sexually Explicit Conduct." The

first guideline specifies a base offense level of

17, the second one of 15. The second also

provides a two-level enhancement for use of a

computer, but expresses it differently: "if the

defendant’s possession of the material resulted

from the defendant’s use of a computer, increase

by 2 levels," rather than "if a computer was used

for the transmission" of the material. The second

guideline, however, contains no enhancement for

sadistic, masochistic, or violent material. The

first guideline, we are told in the Sentencing

Commission’s commentary on it, is applicable to

defendants convicted of (among other offenses)

receiving visual images of child pornography, 18

U.S.C. sec. 2252(a)(2), a statute that carries a

maximum penalty of 15 years in prison, see sec.

2252(b)(1), while the second guideline is

applicable to defendants convicted of possession

of such images, sec. 2252(a)(4), which carries a

maximum penalty of only 5 years. sec. 2252(b)(2).

Richardson was convicted under both statutes but

sentenced under the guideline applicable to the

one carrying the heavier maximum penalty. That

was proper under the guidelines’ grouping rules,

U.S.S.G. sec.sec. 3D1.1, 3D1.3(a), and anyway is

not challenged; if he were punished only for his

less grave offense, he would be escaping

punishment for committing the graver one.

 The puzzle is why receiving, which under the

first guideline and the statute that it

implements is punished as severely as sending,

United States v. Ellison, 113 F.3d 77, 81 (7th

Cir. 1997), should be punished more severely than

possessing, since possessors, unless they

fabricate their own pornography, are also

receivers. The explanation may be that receivers

increase the market for child pornography and

hence the demand for children to pose as models

for pornographic photographs; possessors, at

least qua possessors, as distinct from receivers,

though most of them are that too, do not. United

States v. Johnson, 221 F.3d 83, 98 (2d Cir.

2000). The possessor who creates his own

pornography strictly for his personal use is not

part of the interstate and international traffic

in child pornography, a traffic that not only

increases the demand for the production of such

pornography but, by virtue of its far-flung

scope, makes it extremely difficult to locate,

let alone protect, the children exploited by it.

Concern with the welfare of the children who are

used to create pornography is part of the public

concern over child pornography, United States v.

Saylor, 959 F.2d 198, 200 (11th Cir. 1992), and

this makes the receiver a greater malefactor than

the possessor.
 We grant that the distinction is rather tenuous.

The possessor who creates his own child

pornography has presumably used a child as his

model; and it is uncertain whether Richardson

paid for any of the images he downloaded. But

these are doubts for another day, since he makes

no issue of the fact that the two statutes, and

the guidelines implementing them, specify

different penalties.

 Against the four-level enhancement for receiving

visual images of bondage or torture, however,

Richardson argues with support from several

decisions by other circuits that the enhancement

requires proof that he received these images

deliberately. United States v. Tucker, 136 F.3d

763 (11th Cir. 1998) (per curiam); United States

v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995);

United States v. Cole, 61 F.3d 24 (11th Cir.

1995) (per curiam); United States v. Saylor,

supra, 959 F.2d at 200-01. There is no evidence

that Richardson ordered such images or wanted to

receive them. He downloaded child pornography

from newsgroups that did not indicate whether any

of their images contained scenes of bondage or

torture. If the sample that the government

examined is representative, about 5 percent of

the images he received did contain such scenes.

 One of the decisions on which Richardson relies

(Saylor) is distinguishable as involving

"sentencing entrapment." Id. at 200. With no

reason to think Saylor desired sadomasochistic

pornography, the government shipped it to him in

order to create a predicate for enhanced

punishment. Cole is distinguishable from our case

for a different reason, that the defendant

exercised reasonable care to avoid receiving

sadomasochistic pornography. Richardson did not.

On the contrary, by downloading in bulk from

sources that did not indicate the range of sexual

practices depicted in their inventory of

pornographic images, he assumed a substantial

risk of receiving some bondage and torture

images. Tucker and Kimbrough do not require proof

of reasonable care to avoid the receipt of

violent images, but in Kimbrough a requirement of

intent is assumed rather than discussed, and in

Tucker the court, while explicit that intent to

receive violent images must be shown, found the

requisite intent on evidence no stronger than is

present in this case.

 Setting aside cases of sentencing entrapment, we

think that the government is correct that

liability for receiving violent child pornography

is strict. Sentencing enhancements generally are

imposed on the basis of strict liability rather

than of the defendant’s intentions or even his

lack of care. The more serious of the two
offenses of which Richardson was convicted

requires knowing receipt of child pornography,

thus satisfying the usual requirement that mens

rea be proved to convict a person of a serious

offense, and exposed him to a maximum sentence of

15 years. The guideline at issue enhanced his

sentence within that range to reflect the fact

that receiving bondage and torture pictures

aggravates the offense. The guidelines contain

numerous provisions enhancing punishment when the

defendant causes more than the usual harm that

the offense inflicts, without regard to whether

unusual harm was intended. An example is U.S.S.G.

sec. 2B3.1, which, as explained in United States

v. Hart, 226 F.3d 602, 605 (7th Cir. 2000),

"governs the crime of robbery and provides for a

range of enhancements to be imposed by the

sentencing court if the defendant’s conduct

during the course of the robbery created a risk

of harm beyond that which is inherent to the

offense"; see also United States v. Schnell, 982

F.2d 216, 220-22 (7th Cir. 1992). The punishment

bonus for receiving child pornography that

depicts bondage and torture is simply another

illustration of the general principle. Should a

case arise in which the defendant made heroic

efforts to avoid receiving bondage and torture

pictures, the district court will no doubt grant

a downward departure, and that is safety valve

enough. This is not such a case, and we therefore

find ourselves in respectful disagreement with

our sister circuits. Because of this disagreement

we have circulated the opinion to the full court

in accordance with 7th Cir. R. 40(e). No judge in

regular active service voted to hear the case en

banc.

 Regarding the second issue, the two-level

enhancement for transmission via computer, there

is an initial question whether the issue is

properly before us. At sentencing the judge asked

Richardson’s lawyer whether he had an objection

to the enhancement, and the lawyer said "no."

This was a waiver in the strict sense of the

term, that is, a deliberate relinquishment of a

known right. As such it is barred from receiving

further judicial consideration, United States v.

Olano, 507 U.S. 725, 733 (1993); Johnson v.

Zerbst, 304 U.S. 458, 464 (1938); United States

v. Harris, 230 F.3d 1054, 1058-59 (7th Cir.

2000); United States v. Staples, 202 F.3d 992,

995 (7th Cir. 2000); United States v. Goldberg,

67 F.3d 1092, 1099-1100 (3d Cir. 1995), unless

the lawyer violated his duty of providing his

client with effective assistance of counsel,

which is not argued here. "Waiver" is often used,

it is true, in a broader sense to mean that a

litigant forfeits an issue by failing to present

it in a timely fashion (or at all), even though

the failure may have been accidental rather than

deliberate. United States v. Johnson, 223 F.3d
665, 668 (7th Cir. 2000); United States v.

Staples, supra, 202 F.3d at 995; Delwood Farms,

Inc. v. Cargill, Inc., 128 F.3d 1122, 1127 (7th

Cir. 1997). In cases of waiver in this sense,

better called forfeiture to distinguish it from

classic or "real" waiver, Rule 52(b) of the

Federal Rules of Criminal Procedure permits

"plain errors" to be "noticed although they were

not brought to the attention of the court."

 The distinction between waiver and forfeiture is

important to the operation of an adversary

system, which is another reason for avoiding use

of the word "waiver" to designate both concepts.

It is one thing to require judges to be alert to

oversights that may affect substantial rights,

and another to require them to override the

clearly expressed wish of a party or his lawyer,

which may be backed by excellent strategic

reasons, not to invoke a particular right. The

law has not taken the second step. The safety

valve here is the defendant’s right under the

Sixth Amendment to the effective assistance of

counsel, which may make a waiver for which there

was no strategic reason a ground for giving the

defendant a new trial.

 Even if there were no difference between waiver

and forfeiture, this would not matter in the

present case, because we believe that "computer .

. . used for the transmission" in section

2G2.2(b)(5) of the sentencing guidelines does not

mean, as the defendant argues, "computer . . .

used by the defendant for the transmission." It

is true that this language differs from that of

the corresponding computer-related enhancement in

the possession guideline, which directs

enhancement "if the defendant’s possession of the

material resulted from the defendant’s use of a

computer." But that language wouldn’t fit all the

different offenses in the trafficking-receivingpossessing-with-intent-to-distribute guideline.

Some difference in language between the two

computer-enhancement provisions was therefore

inevitable. The "used for the transmission"

formulation is not as perspicuous as it could be,

and this is a matter to which the Sentencing

Commission may wish to advert (and maybe at the

same time it could explain why receiving and

possessing the identical materials should be

punished differently); but we think it reasonably

clear that it covers receiving as well as

sending. The words permit this reading, though

they do not compel it, but the structure of the

guideline compels it. The guideline treats

transporting and receiving identically (unless

the defendant is right and the computer

enhancement drives a wedge between the two

offenses). A defendant who receives in the mails

a magazine containing child pornography is
punished the same (apart from individual

differentiating characteristics such as criminal

history) as the one who sent it. What sense would

it make to break this punishment identity just

because the mode of transmission was the Internet

rather than the mails? Use of the Internet

enhances the dangers that child pornography

poses, because it is a more discreet and

efficient method of distribution; but if this

makes the sender more dangerous, it likewise

makes the receiver more dangerous. A market has

two sides, supply and demand; without both, the

market collapses. The senders of child

pornography supply it; the demanders receive it.

The guideline is acknowledged to treat both sides

of the market symmetrically when any method of

transmission other than the Internet is used; it

would make no sense to treat them differently

when the more ominous method is used.

Affirmed.